Northern Ireland Protocol Bill

Lord Bew Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Bew (CB)]

My Lords, I support the Bill. I speak as a remain voter, a strong supporter of the Good Friday agreement—I supported it when it was not quite so fashionable as it seems to have become—and a civil rights marcher.

However, I support the Bill and I shall explain my first reason. There is an international treaty, and under Article 1, paragraph 5 of that treaty, the Good Friday agreement, which is lodged at the United Nations, a sovereign Government have the responsibility to deal with the alienation of one or other community. A few weeks ago, because of the effect on the aspirations of the nationalist community, we passed the Irish language Bill in this House in the spirit of that international treaty. The Bill today is designed to reach out to the unionist community, which is alienated on the subject of the protocol, and is designed to offer some comfort.

Mode of address is everything in politics; it is very important to say that. I have never felt more Irish than when listening to this debate today. The Irish expression “The day that’s in it” came to mind; to give your Lordships the English translation, “Timing is everything in politics”. There is talk of suspending the Bill for six months. Obviously, I listen more to the Irish media than other Members of this House, but when the Taoiseach says the negotiation now going on is in good faith and the Foreign Minister says the Bill is not an issue causing blockage, the only effect will be to disrupt the attempt to mollify the alienation of the unionist community on this issue, but we are committed under an international agreement to act just as we did with the Irish language Act a few weeks ago. That would be the only effect of a delay. These negotiations are well ahead. It might conceivably have been argued that the negotiations would be affected in a bad way, but there is absolutely no such effect. It is important to say that.

The noble Lord, Lord Howard, raised the issue of Article 16. The truth is that at this moment—again, “The day that’s in it”—it would be ridiculous. These negotiations were started at various times. Eminent international lawyers have said the Government’s approach needs Article 16. The Government’s approach is basically right to protect the Good Friday agreement, but you have to explore all routes, and Article 16 may yet return, but at this moment it would be absurd. It would cause irritation in Dublin. Timing is everything in politics, if I may say so.

I turn to illegality: pacta sunt servanda. There is more than one treaty involved. I have already tried to explain this. In fact, there are three international treaties, including the 2017 joint agreement—which, by the way, talks about unfettered access, which apparently we are not allowed to expect but is in that international agreement.

The point about the 2017 agreement, as the Irish lead official Rory Montgomery has said, is that basically the Irish Government were ceded by the British Government sole control of the Good Friday agreement. It is a two-sided agreement; not only that, but as a sovereign Government we have more responsibilities than the Irish Government. That set the template for the difficulties in all the subsequent agreements that we are now trying to resolve. It is how we got into this place and we are now trying to sort it out. It is messy, but the negotiations are now in play. The Bill was launched in June and passed in the House of Commons, and the EU has not said, “Oh my God, this is so brutal, we can’t talk”. I am not saying we are talking because of the Bill—although I know plenty of people who believe that—but I am certain that you cannot argue that the Bill is preventing this negotiation. That is how it is going to be resolved.

In conclusion, I want to say a word about international agreements. On 12 March 2019 the Brexit Secretary—with, he said, the sanction of the Attorney-General—said the Good Friday agreement was the prior agreement. In the event of subsequent agreements being in conflict with that agreement, the UK reserved the right to resile, under the Vienna convention, from the Good Friday agreement. That may be bad law, but it was that Attorney-General in the May Government. Nobody actually knows what international law is on this, to be absolutely honest; I do not want to be too brutal about it, but nobody does know. I am simply saying that the argument in play now is exactly the original argument. For some time now, three years or more, the UK Government have been saying, “We have two treaties to work with here and the Good Friday agreement is important to us”. We have heard from the noble Lord, Lord Jay, that the east-west dimension of that agreement is not working under the protocol and therefore we have a problem. So the UK Government’s position is, at least in that limited sense, a consistent argument.

As I keep repeating, under that protocol the UK Government have special responsibilities, which the Irish Government do not, to address the alienation of communities. I could accept the argument that some of the Bill is a bit cack-handed or not to everybody’s taste, but the fact that the Government are making a separate, desperate effort to address the alienation of one community is entirely within the logic of their international obligations. It must be understood that the treaty is in the United Nations and has no other possible meaning.

I have a few words for those in the Democratic Unionist Party. I understand that they feel that a lot of civilised opinion among the commentariat in Northern Ireland is willing them to fail, and I totally accept the good-faith remarks from the noble Lord, Lord Dodds, today. For example, in the few days before the Bill was introduced, the commentariat said it was never going to happen—but nobody then apologised in the collective wisdom of Northern Ireland. I understand the irritation with all that, but it is the case that on 27 June the DUP explicitly stated in the House that in the event that the Bill passed the Commons on its Second Reading, there would be moves towards the return of devolution. No such moves have happened. This is the vulnerability, and it is why the noble and learned Lord, Lord Clarke, is able to raise the issue of good faith. Ultimately, I accept that good faith—but no such move has happened.

The consequence is that we are likely to be moving towards an agreement between the EU and this country, and those in the DUP will be excluded from the terms of it. They will just be the passive recipients of whatever comes down the line and they will lose the place that they rightly hold—Northern Ireland, by the way, is a co-premiership—under the recent election results in the institutions of Stormont. It is time to think again about moving. I know there are all kinds of issues, but it is time to think again about moving because the centrist vision that their leader is now putting forward cannot be achieved if there is a bitter and resentful election, which is extremely likely to follow if we do not move quickly.

Northern Ireland Protocol Bill

Lord Bew Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, I am sure the House would not expect me to, or hope that I would, follow that contribution. I apologise for not being able to speak at Second Reading. I was travelling, as it happens, back from the United States and could not get here before the proper time and date to indicate a wish to speak in the debate. However, that travel to the United States prompts me to say this: we ignore at our peril the importance attached on both sides of the aisle, and in both Houses of Congress, to the Belfast agreement. To put it neutrally, this Bill puts a stress and strain on that settlement. For that reason, and for all the others eloquently put forward today, this Bill should at the very least be delayed.

I remind the House that, some time ago, we were presented with a Bill nominally in relation to internal markets. It contained a Part 5, the purpose of which was to create a law whereby the Government would be excused when it broke the law. The Government have form on this matter, and there is a sense in which the Bill we are discussing is simply part of the same kind of thinking. What has been said today has been said with great eloquence; what was said in this House on the internal markets Bill was said with great eloquence and eventually the Government had to abandon it.

[Lord Bew (CB)]

My Lords, I rise to speak with some trepidation as, apart from the noble Baroness, Lady Fox, this has been a convention of like-minded people, as the noble Lord, Lord Cormack, put it.

I have just come hot-foot from a Committee A (Sovereign Matters) meeting at the British-Irish Parliamentary Assembly in Cavan. We were addressed by the Taoiseach at some length and by other Irish Ministers. There was much discussion of these matters during the day. However, no Irish Minister said, “Whatever you do, when you get back to London, make sure that this protocol Bill is stopped”. It is simply not a contentious matter in these negotiations. That is a simple fact. A very large percentage of what has been said today about the need for good faith and how dropping this blunderbuss will strengthen our position is, with the kindest of respect, totally irrelevant.

The EU has decided, for its own perfectly good reasons—it is keen to reach this deal; I utterly believe in its good faith—that this Bill will not stop substantive negotiation. What it would do, if the majority opinion in this House were to prevail, is stop the Government’s attempt to bring the DUP back into the Assembly. That will be its only real effect. Neither the Taoiseach nor the other Irish Ministers said a word about it yesterday at Committee A (Sovereign Matters), because this Bill is not central to them. What is central to them is the ongoing negotiation, which is proceeding with good faith on both sides and from which I sincerely hope for a result. It is very important to say that.

A great part of what has been said is, I am sure, very well meant but, to put it bluntly, totally irrelevant. It is not the realpolitik of the moment. That is very important to understand. Dropping this Bill will not transform those negotiations into a better or worse state. They are going on now; they are facing some very difficult problems—I think there may be some progress—and we can certainly hope, as I am sure everybody in the House does, for an outcome on this. But it is simply pointless, bootless and, worst of all, deeply irrelevant to keep arguing and going on about the need to drop the Bill because it would lead to greater faith in negotiation. The negotiations are already in play, in good faith—end of story. However, it would have an effect on our ability to get the DUP back into government.

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[Baroness O'Loan (CB)]

Can I ask the noble Lord whether he thinks that the Government’s intention to call a Northern Ireland Assembly election on Friday will assist matters?

[Lord Bew (CB)]

I thank the noble Baroness, Lady O’Loan, very much for that question. The short answer is that I agree with her. We have a new Prime Minister, which begs the occasion for looking again at that question because, frankly, we need some more weeks to see how the negotiations go and so on and, frankly—

[Lord Carlile of Berriew (CB)]

That is what noble Lords have been saying.

[Lord Bew (CB)]

The negotiation with the European Union is proceeding apace anyway. This is of no relevance —I keep saying this—and nobody in the Irish Government even bothered to talk about the protocol Bill.

By the way, is there a majority of popular opinion in Northern Ireland against the protocol? I think that is probably right, although there is a large minority for it, but you all must appreciate we have long since left majority rule behind.

On the calls from the noble Baroness, Lady Chapman, for new information, I completely respect them, but, actually, the truth is extremely simple. We basically know where we are in terms of business. As the noble Lord, Lord Jay of Ewelme, who chairs the Sub-Committee on the Protocol on Ireland/Northern Ireland, said on Sunday, businesses with a north-south dimension like the protocol, and those with an east-west dimension do not like it. We already have a lot of information and, politically, we already know.

By the way, the passion for the full implementation or support for it in Northern Ireland, which was real at one point, is dead—completely dead. That having been said, I would totally accept that the majority of the parties and Members in the Assembly—

[Baroness Ritchie of Downpatrick (Lab)]

I thank the noble Lord, Lord Bew, for giving way. While I was not at BIPA, my clear understanding—and I have just had it confirmed—is that the Irish Government’s position is quite clear that they view this protocol Bill as an unnecessary, unilateral move that breaks international law. Of course, they want to see a successful outcome to negotiations between the UK and the EU.

[Lord Bew (CB)]

I thank the noble Baroness for her intervention. Of course I take the point, but I was saying that nationalist Ireland basically does not like this Bill. That is not the point. The point is that it is not in any way stopping or infringing or slowing up the negotiations. The point is that the equality of esteem doctrine, which we are supposed to be following with the Northern Ireland protocol, means that the House is bound by international law to pay attention and to try and do something. On whether this Bill is precisely right, there are amendments starred in the normal way to be discussed, but we are not in the situation where we are talking about amendments.

I have great sympathy for the noble Lord, Lord Howard, who raised the issue of Article 16. However, when I look at the noble Lord, Lord Frost, who was in a critical position on this matter for quite long spells in recent times, I think that he is bound to be surprised by the sudden outbreak of support for the implementation of Article 16, because at any time when he voiced the same civilised opinion in this Chamber, noble Lords were totally against it and regarded it as outrageous—of course it never was.

There is even a case now for the implementation of Article 16, made by Professor Boyle, who was professor of international law at Edinburgh, to both the House of Commons Select Committee on this matter and our own Select Committee on this matter. He is actually open to the argument for the importance of the prior international agreement and the importance of protecting it. He is a very distinguished international lawyer. What I understand him to be saying is that, first, you must apply Article 16; that is a perfectly reasonable argument that I am open to. In addition—I look at the noble Lord, Lord Howard, in engaging on this point—the other point that I very much agree with him about is that there is no need to ask the EU to change its negotiating mandate; it has to live up to its commitment to the Good Friday agreement.

The context is one in which—Members of this House do not read the Irish media as I do, and Irish books, articles and so on—there is a fairly consistent admission on the part of the Irish Government’s negotiating team that, when Theresa May was on her knees in November 2017, the advantage was pushed very hard in that agreement, and that they took sole ownership, or sole guardianship, of the Good Friday agreement. In many ways, what is happening here is an attempt by the British Government to say, “Well, actually, that is not really the Good Friday agreement. First of all, you do not have sole ownership. Secondly, we have responsibilities as a sovereign Government not held by the Irish Government and”—as I have tried to explain—"we are trying to move back to deal with this in some way.”

This does not mean that every clause in this Bill is particularly wise, but it does mean that we should not take the attitude that in principle we should not be doing it, or that we must stop now because otherwise the EU will stop negotiating—that is clearly not true. I agree that the Irish Government do not like the Bill and that they believe that it infringes international law. I absolutely accept that point, but the point is that we have to follow our obligations under international law, which means that the long-term alienation of one community must be avoided. Unless the Government do something substantive such as this—

[Lord Howard of Lympne (Con)]

Does not the noble Lord think that it is slightly odd that his justification in law for supporting the Bill is not the Government’s?

[Lord Bew (CB)]

The noble Lord has a point—but not as deep a point as he might imagine, because the Government have been consistent in saying that the primacy of the Good Friday agreement is the core of their position, in both the House of Commons and in this House. There are other details; there is phrasing. For example, as is well known, I am not as convinced of the need for language in this Bill about the Act of Union. I understand why it is there, but I am not convinced that it is relevant. There are other aspects that we will discuss, in the normal way, on amendments. There is detail that will come up later tonight, and there are things that need to be said, in the normal way. But this is not a normal discussion—

[Lord Purvis of Tweed (LD)]

I am grateful to the noble Lord; he knows that I like and respect him. I am trying to follow the rationale of his argument with regards to us legislating here. Earlier, he made the case—he stressed it repeatedly—that the only purpose of the Bill as he can see it is for the DUP to return to the Northern Ireland Assembly. As far as legislators are concerned, does that mean that the DUP also has a veto on any regulations that come as a result of this Bill?

[Lord Bew (CB)]

We are in political negotiations. Here is our problem; I have already explained it. When I tried to persuade the noble Lord, Lord Dodds, I said, “Just believe the British Government when they say that the Good Friday agreement is the dominant thing”. We can see now what has happened here. You only have to read the Dublin newspapers, to be frank, to realise what has had happened.

We cannot undo a negotiation that we lost. It is not the officials’ fault; the Prime Minister had lost an election and was desperate to get in and to make any kind of progress to justify her existence. You cannot undo this; I am not suggesting that it is possible. You lose, you lose—end of story, at one level. However, at another level, what it means is that the EU is committed to the Good Friday agreement, and it does not understand what it is committed to. You only have to read Michel Barnier’s memoirs to see that he has no idea about the importance of the east-west dimension and that his description of the north-south dimension is literally fantasy, which has been derisorily commented on in all sections of the Irish media.

We are bound into this agreement, but we cannot be bound into a fantasy. We have to unhook. We must have a good-faith negotiation in which we have to acknowledge the things that have gone wrong on our side and the EU has to acknowledge that the version of the Good Friday agreement it thought it had is not the real agreement. There is a strand three, for example, which talks about the importance of the east-west arrangements and so on. You can see how the original misunderstanding runs through all the texts and leads to the difficulties we are now in. To go back again to why I agree with the noble Lord, Lord Howard, we do not need to ask the EU to change its mandate. We need to ask it to understand its mandate. Its mandate is the agreement. It does not take long to read it, by the way. There is a strand three about the importance of east-west relations, although you would not know it from Michel Barnier’s memoirs. You would not know it, and you would not really know what the north-south relationship is either. So, that is one reason why this negotiation has some potential, because both sides have to come to terms with their errors in the past.

I conclude with one thing, because I have great respect for the noble Lord, Lord Hain, and what he said about Baroness Blood—as did the noble Baroness, Lady Ritchie. However, we also have to remember what other former distinguished Labour Secretaries of State said in acknowledging this difficulty. The noble Lord, Lord Mandelson—who was deeply involved in saving this process—said last week that he accepts that the Good Friday agreement and the protocol do not sit easy together; the tension is there. The noble Lord, Lord Murphy, talked about this in this Chamber as long ago as 6 December 2018. Distinguished Labour Secretaries of State know that there is a problem. The existence of the problem was not really acknowledged by the noble Baroness, Lady Chapman, earlier this afternoon.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, in all this discussion, not enough is said about the horror of what was experienced in the years leading up to the Good Friday agreement. We are forgetting that. In the language of decency in the House of Lords, we are allowing ourselves to somehow not remember the full horror of that period. That horror was rooted in inequality, a lack of rights for certain people in the community, and a strong sense that the only way towards peace was to somehow protect the rights and equalities of people in Northern Ireland. You would not have got people to the table if there had not been a very honest discussion about the pain, loss and suffering that came out of those inequalities. I can say this as somebody who did more trials involving those Troubles than probably anybody in this House.

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[Lord Pannick (CB)]

My Lords, I pay tribute to the noble Lord, Lord Bew, because he has at least made the effort to present an argument as to why the Bill is not a breach of international law—something that the noble and learned Lord, Lord Stewart, the Advocate-General for Scotland, for whom I have great admiration in other circumstances, expressly declined to do at the end of Second Reading. As I understand it, the argument from the noble Lord, Lord Bew, is that international law includes the Good Friday agreement, which recognises the need to pay close attention to the views, interests and aspirations of all sections of the community—and here, most relevantly, the views of the unionist community, and in particular the DUP.

That argument deserves an answer so I will attempt briefly to explain why, in my respectful view, it is hopeless as a matter of international law. The reason why the argument is hopeless is that international law states that the doctrine of necessity simply cannot apply where the Government have caused or contributed to the problem that they now perceive and are seeking to address. The noble Lord, Lord Bew, cannot get away from the basic facts that the Government negotiated and signed the protocol. In international law, it is simply elementary that a state cannot sign a specific agreement and then seek to resile from it because it takes the view that it is neither convenient nor in the interests of particular sections of the community. Indeed, the Government signed the protocol—and said they did so—because they took the view that it was the best way of protecting the views of all sections of the community, including the DUP. It therefore follows that, if the Government take the view that this is unacceptable, inconvenient and does not meet the DUP’s aspirations, international law demands that the Government negotiate with the EU and attempt to arrive at another solution. It is as simple as that.

[Lord Bew (CB)]

It is a little more than just “a need to”, which is definitely there. I can see perfectly clearly that the noble Lord is not familiar with Article 1(5), to which I referred, which is an international agreement held in the United States. The crucial thing is that this is also about the commitment to support the Good Friday agreement in all its parts. I am saying something slightly more complicated. We have both agreed to do this. The EU does not understand, for example, that “in all its parts” includes east-west, the totality of relations, a benign relationship and so on. It is impossible to fit the description of the east-west trading relations we now have from the protocol. This is very much a matter of decisions made by the EU, such as on how much intervention was required—or not. This is very much about its regulatory interventions going beyond what is necessary in anything that is actually in the protocol because the protocol itself says that the integrity of the UK single market will be upheld. Those are the words of the protocol—the important bit is in paragraph 25—but that is not what has happened.

My point is this: it is not just a question of the EU and the responsibility of one community, which is definitely there in paragraph 1 of the international agreement. This is about strand 3. At this point in the negotiation, we are simply saying, “We have both agreed to this. Your regulations most certainly break strand 3 at the moment”. I cannot understand why that is such a terribly complicated point in international law. We have all signed up to this; it is an argument about the interpretation of it.

[Lord Pannick (CB)]

I bow to the noble Lord, who has immeasurably more knowledge and experience of Northern Ireland than I could possibly have, but of course I have read the Northern Ireland agreement and understand that there are two documents in international law. The simple point is that, in the protocol, we agreed the means by which we take the view that the Good Friday agreement should be implemented in the context of the United Kingdom leaving the EU. That is what we agreed; we cannot now say that we are going to resile from it unilaterally. It is as simple as that.

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[Lord Bew (CB)]

My Lords, I would like first to take up my noble friend Lord Pannick’s point about the Government being responsible for this situation. I will give a simple example of why that is not an easy quick-fire point. Looking at the joint report of 2017, it is, as Michel Barnier insists, an international document where both sides signed up. I understand in this House the great sanctity of international documents; I have heard that a number of times today. Having said that— and I respect it—our Government signal in that document that they are determined to maintain the east-west relationship as described in strand 3 of the Good Friday agreement.

We have signalled that there is a problem, which is now at the heart of the matter. It is not that we are suddenly saying late in the day, “Oh my gosh, we never thought of strand 3”; it is in that document. The EU was perfectly aware when it signed the document that the UK was going to take the view that the east-west strand 3 relationship is very important and should be maintained in its current and best form.

[Lord Purvis of Tweed (LD)]

Would the noble Lord give way on that point? I am just wishing to test that a little further with the sequencing. If he is correct about the agreement made in 2017, he also has to appreciate that it was the Government in 2019 who said that the protocol they negotiated satisfied that 2017 agreement. Therefore, they got parliamentary approval to ratify that. It became a treaty obligation which is now under question. If his argument is correct, then the sequence flows that the Government knowingly said in 2019 that the protocol satisfies that 2017 agreement.

[Lord Bew (CB)]

Both the EU and the UK Government said at a number of points—three at least—that this agreement is designed to protect the Good Friday agreement in all its dimensions. Bluntly, it has not done that. We talk about legal opinion and what the Government’s argument has been. The former Lord Chancellor, in the Commons debate on this, made exactly that point. I read the protocol agreement and what did I see? There is a reference to the Good Friday agreement and the protection of it in all its dimensions. That is not actually happening. Both sides signed up in good faith hoping that was what would happen.

Both sides signed up to the protocol, which says that the UK single market should be protected in its integrity. It might be reasonably expected for that to happen. Do noble Lords think that the current provisions for checks are protecting the UK single market in all its integrity? The idea that we both signed up for stuff is very simple. I could go on forever about how “We both signed up for stuff.” To be absolutely honest, neither side fully understood what it was doing.

In particular, the negotiating history of this is clear. The EU did not understand the Good Friday agreement. Michel Barnier’s memoir is perfectly clear. We cannot make pigs fly. Michel Barnier’s memoir is based on a view of the agreement and the undertakings in it which is based on pigs flying. We cannot do it with the best will in the world and for all our enthusiasm to be loyal to something we signed up for. We cannot make pigs fly. His version of what he was protecting is not what it is—not by a long way. The reason for this is our negotiating defeat in 2017 and Mrs May, having effectively lost an election, desperately getting into talks. We cannot undo that; I am not saying we can. In history, we signed up for stuff and we are trying to find a compromise, but we cannot make pigs fly. We cannot make nonsense be operative. It does not matter how morally committed we are.

[Lord Campbell of Pittenweem (LD)]

I am very grateful to the noble Lord for giving way. Is there not a possible remedy here? If there are conflicting views, should we apply the principle of contra proferentem? Those who argue for a particular view have the onus of establishing that that view is the correct one.

[Lord Bew (CB)]

We are in a situation now where in Dublin it is accepted by those involved in the negotiation that they achieved a one-sided appropriation of this agreement. This then flows into the agreement of 2019. It was because of our weakness. We cannot undo it and we signed up for it—I get all that—none the less it is accepted by them that there is a problem. The problem cannot be met by saying “You signed up for it”, “Boris was a fool” or anything like that. It is a real problem at this moment. That is the key thing we are stuck with.

This agreement and the protocol say in numerous places—the former Lord Chancellor said it in the other place, so the Government have argued this very clearly—that it is about protecting the Good Friday agreement and for good measure protecting the integrity of the UK single market. This debate is rather different from the terms it has been couched in. I keep saying that the reality is about the interaction of a prior international agreement and the protocol agreement. There are different views of this.

While we are on this subject—regarding the evidence of Sir Jonathan Jones that was cited earlier—the Attorney-General in 2019 explicitly said in the other place, and it was repeated in this place, that there is a problem: where the protocol conflicts with the Good Friday agreement, the UK reserves the right to operate the existing prior international agreements. Who was working in the Attorney-General’s office then? I am certain there were some quite good lawyers when that happened.

We heard about Professor Mark Goldie’s observations, and they are absolutely true. He is a professor in public law in Cambridge who came to our committee in the Lords. I think Professor Boyle came to both committees. Professor Goldie listened to Professor Boyle, who I am certain does not support this Bill and who is much more open in principle to the arguments regarding international law, that the prior international agreement weighs heavily here. In the interaction of the two of them he personally argued Article 16 should be applied because you cannot demonstrate necessity unless it has been applied. I have often been attracted to that argument, but I am astounded by the number of Peers in this House who are mad keen for Article 16.

I am a historian, not a lawyer. I remember a few months ago when every civilised person was regarding the application of Article 16 and no one was saying “Oh, it’s in the treaty.” I remember the intensity of emotions—that this would be another foul act of disgraceful behaviour by the Government, even though it clearly is in the treaty. I am delighted there are so many converts today. I am not even sure; I think they might be right. It is a fashion change, not an international law change. The mood of the House has changed on this point, and nothing has changed in law.

I am not saying that Professor Goldie supports the Bill; I am certain he does not. As I said, I am not sure that Professor Boyle does either. Professor Goldie accepted the burden of Professor Boyle’s argument that it is very important to have upfront protection of the Good Friday agreement. The story about what international lawyers say—I am certain this will become even more complicated in this Chamber before this Bill finishes its passage—is a little bit more complicated. That is all I want to say. I am not saying that I know. I could not possibly say that sitting on this Bench with two very distinguished lawyers.

I am not making a claim about law but about history and what actually happened, how we got here and the mood on this, because that does rather matter. What I am saying is that the Government would be within their rights to say that there is a debate on this subject and there is a real problem. If you are not even talking—as most speakers today have not—about the interaction between the Good Friday agreement, the prior international agreement, and this agreement, then you are not even in the debate in any realistic way. They would have the right to say that.

[Baroness Altmann (Con)]

My Lords, with all due respect to the noble Lord, Lord Bew, and in due deference to the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, I will now inject the perspective of an economist and businessperson.

I support Amendments 3 and 67 and will try to inject a different perspective here. The arguments about protecting the Good Friday agreement are of course important and real. However, it seems that, despite arguing that the UK has contributed to the problem—which is essentially part of the reason why the doctrine of necessity seems unable to be applied here—there are options open to the United Kingdom to respect the Good Friday agreement, including maintaining regulatory alignment. Were regulatory alignment to be maintained, the east-west problem would not necessarily arise—because the EU could be reassured that there is less of a threat to its single market—and the north-south element would also not arise. If the UK wanted to diverge regulatorily, it has the option to negotiate that. So there are practical resolutions within our power to protect the Good Friday agreement and the protocol.

If we cast our minds back to the awful Brexit and post-Brexit periods, an assurance was given to noble Lords, including myself, that there would be technical arrangements—alternative arrangements—that would permit the flow of goods across the border that could be tracked, with trusted traders and technology being introduced, that would mean that we would not have these problems of customs procedures. If those arrangements were to be in place, the problem would not arise. So again, the UK Government have the option of saying, “We will maintain regulatory alignment until we have introduced those arrangements”. That would allow us to be in a position where we would not be breaking international law.

I agree with the noble Lord, Lord Bew, when he said that, if there is a problem, we should try to find a compromise, but that again means negotiation and using the facilities we have signed up to ourselves rather than threatening to blow up the whole agreement. I urge my noble friends on the Front Bench to try to get away from the magical thinking that we can somehow square this circle by threats or by breaking international law—or even by threatening to break international law—and instead to get around the table and negotiate a reasonable way forward that gets away from this kind of argument.

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[Lord Kerr of Kinlochard (CB)]

Perhaps I might provide a lifeline to the Advocate-General for Scotland, because I am a Scotsman too and I hate to see him being so tortured. The noble Lord, Lord Pannick, asked to see the legal advice. I am sure, as he was sure, that in reply the Minister will remind us of the convention. The noble Lord’s alternative option was that the Minister should tell us now what he was unable to tell us, as it was an inappropriate time, at Second Reading.

I have a third option. I was struck that nowhere in the Minister’s quite long speech at Second Reading did he ever fall into the trap of making the applicability of the doctrine of necessity his view. It was never him explaining that he believed the doctrine of necessity applied. It seems to me that the concerns of the House might be satisfied by a memorandum. A memorandum was produced in June and July, which was a singularly unsatisfactory document in my view. It looks even less good now, having been subjected to critique at Second Reading and by the noble Lords, Lord Campbell, Lord Purvis and Lord Pannick, tonight. However, there could be a second edition setting out the Government’s response to the arguments that have been advanced, including by the Constitution Committee. So I suggest that a third option that would satisfy me and might satisfy the noble Lord, Lord Pannick, would be for the Minister to undertake tonight to produce for us a revised edition of the pre-summer memorandum.

[Lord Bew (CB)]

My Lords, very briefly, I have been trying to say that the legal advice is a little more complicated and nuanced. I am not claiming, for example, that any prominent international lawyers such as Professor Boyle support this Bill. In fact, I do not think he does; he is one of the many who believe in Article 16.

I am quite astounded. Only a few weeks ago, every civilised person knew that Article 16 was the most brutish thing they had ever heard of. All civilised Peers across all parties and all civilised people knew it was the most brutish thing they had ever heard of, just as they are sure of this tonight. However, at this point we have a serious negotiation with the EU. Why do they think that, to improve the atmosphere of these talks, it would be a smart idea for the British Government to come in on Monday morning and say, “Well, you know, civilised opinion has changed. A few months ago, we thought it was brutish; we now think this Bill is so brutish that we want you now to declare Article 16”. This is not serious. There is a serious negotiation going on. You cannot seriously ask the Government to do this. I sympathise and fully accept that the legal arguments are more complex than has been acknowledged in this Chamber this afternoon—they are difficult and I have no firm, final view—but it would be absurd for the Government to say at this point, “Oh, we were having this negotiation but, by the way, here is Article 16”. I am sorry, it just would not work.

[Lord Pannick (CB)]

For my part, and I am sure it is true of others who have spoken in this debate, I am not asking the Government to exercise Article 16 tomorrow. The point is that the availability of Article 16 at a later stage is the reason why the test of necessity cannot be satisfied.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, the Minister said that the four-page document we saw in July was designed to assuage our concern. Unfortunately, it did not. In one sense, I am impressed that the Government are prepared to receive criticism of their legal assertions in that document from people of the stature of Sir Jonathan Jones, Professor Mark Elliott, the noble Lord, Lord Pannick, and my noble friend Lord Campbell of Pittenweem, and still say, “Well, the four-page document adequately sets out our case”. I am sort of impressed but also surprised that the Government are not provoked by the level and depth of that criticism to make a bit more of an effort.

One of my noble friends—I cannot remember which—highlighted the difference between the assertion made at Second Reading that the problem lies in the protocol and the emphasis this evening that the problem lies in its implementation. That would imply that there is no need to rip up the protocol, which is what the Bill is designed to achieve, and that negotiations or dispute resolution up to the ECJ would fit the bill as the problem is in the implementation. The Government keep switching their ground depending on, it seems to me, who most recently raised a point as to whether the real problem is the protocol or its implementation. The Minister said that invoking Article 16 would deal only with the symptoms not the protocol, but surely “symptoms” are the same thing as “implementation” in this context. Again, there is inconsistency here over whether the problem lies with the text of the protocol or its implementation.

The Minister rather confused me with his references to the CJEU being part of the problem. Again, that was known three years ago. The Government agreed and signed up to what the EU would not have otherwise agreed to—Northern Ireland being effectively part of the single market—without the CJEU being the ultimate arbiter of legal disputes. However, I have frankly never taken the point from the right that court adjudication creates a democratic deficit. We do not expect courts to be democratic. They are part of a liberal democracy but are not themselves supposed to be an epicentre of democracy. They rule on the application of the law.

I do not think that it says much for the Government’s knowledge, understanding, foresight or policies that they are now seeking to diverge from the single market, not least in the Bill—I cannot remember its full title; it is something like the revocation of retained law Bill, otherwise known as the Brexit freedoms Bill—that had its Second Reading in the other place today; I do not know whether that is still going on. Diverging from single market legislation makes the implementation of the protocol more difficult so there does not seem to be any coherence in the Government’s policy. They criticise the implementation of the protocol but are going to make that implementation more problematic; indeed, the noble Baroness, Lady Altmann, talked about how maintenance of regulatory alignment would help east-west trade. A UK return to the single market, if not the EU, would do so even more.

[Lord Bew (CB)]

This is a little simpler than our discussion, which has reached a rather convoluted shape. The Government were clear when they launched the Bill that its function is to fix it, not to nix it, as the then Prime Minister said when he came to Belfast, in one of his graphic expressions. That is the simple fact with the protocol, not that you would realise it from anything said in this House today. For example, the Government’s most important commitment to the EU, which is not to have a hard border and to protect the single market, is completely up front in the Bill.

This debate is on whether the Bill is completely destroying things, but we have all been told that it is to fix it, not to nix it. There really is not much to add. The idea may be wrong. There are a number of reasons why it might not work. The Government’s case in international law may not be as strong as the Government believe. The general views of international lawyers on this subject are certainly more complex than most speakers in this House acknowledge. It is certainly a more complex matter—but this is to fix it and not to nix it.

[Baroness Ludford (LD)]

I will not prolong the debate as we all want something to eat. I simply disagree with the noble Lord.

The noble Lord, Lord Dodds, spoke of a lack of trust. As the noble Baroness, Lady Chapman, said, his argument is surely not with the opposition parties, because we have not caused a lack of trust. I happen to believe that unionists in Northern Ireland have long had a bad deal from English Tories, which makes me rather surprised that they have such a close relationship.

I have sympathy with the argument about the lack of democratic input from Northern Ireland into single market legislation, but only the UK being a member state of the EU can fully solve that problem, as it did before. Obviously, I speak as a long-term member of the European Parliament. If there are ways to take into account the views of Northern Ireland, I would be the first to support those suggestions.

The noble Lord, Lord Pannick, answered the point on Article 16. It is not that anybody who has raised it here this evening is advocating the use of Article 16; it is just that the Government cannot invoke the doctrine of necessity when they have not exhausted all the other possibilities.

I am afraid that the Minister, who did his best in slightly shorter time than at Second Reading, has not satisfied me, and probably not my Benches, that the Government are able to put further meat on the bones of how they can justify the doctrine of necessity and thus the legal arguments for the Bill. I beg leave to withdraw my amendment.

Northern Ireland Protocol Bill

Lord Bew Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Browne of Belmont (DUP)]

My Lords, I oppose the proposition that Clause 2 should not stand part of the Bill and that Clause 3 should also fall as a consequential amendment. If it was to succeed, the Bill would be rendered largely inoperative. In response to this, I am struck by two realities.

First, it is striking that the Government are saying, quite rightly, that the Bill is required urgently to avert a socio-economic and political crisis in Northern Ireland. Secondly, it is also striking that the democratically elected House has consented to that and deemed fit to pass the Bill with no amendment.

It is noticeable that many Northern Ireland Peers were yesterday copied into a letter of invitation—as already mentioned by the noble Baroness, Lady Hoey—sent to the movers of this amendment about the provisions in these clauses. It asked that, before they reached any final conclusions on the matter, they visit the logistics centres in Northern Ireland run by McCulla Ireland and McBurney to find out why it is not possible to apply the laws of international trade to regional trade without causing a crisis and to reflect on what they discovered before drawing any final conclusions. These are the largest haulage operators on the island of Ireland. They have considerable expertise on these matters. As Paul Jackson, the commercial director of McBurney, explained to noble Lords on the House of Lords Sub-Committee on the Protocol, were the protocol to be implemented, it would crash the Northern Ireland supply chain “within 48 hours”.

In focusing on the negative implications of the protocol, and the consequences for international law, I want to make it clear that it is not my purpose to deny that the protocol is having positive effects for some—although these would become limited if the protocol were to be fully implemented. My point is simply that, in a context where 95% of our British Isles trade is with Great Britain and only 5% with the Republic, the negatives far outweigh the positives.

The discriminatory implications of denying the people of Northern Ireland the same economic right to trade with their fellow UK citizens cannot be dismissed lightly, because they cut right to the heart of our citizenship. In another instance, the negative impact of the protocol is in no way comparable with the inconvenience arising from having to negotiate customs borders between different states and the application of the rules of international trade to international trade. The inconvenience arising from applying the rules of international trade to intranational or regional trade is far greater than the inconvenience arising from the application of the rules of international trade to international trade, which is why, with the exception of Northern Ireland, it does not happen elsewhere. Thus, we are not merely confronting a situation where we are not affording members of the same polity the same levels of respect as their fellows—seeking to treat them as if they were foreigners, rather than citizens of the same country, for trading purposes—but we are actually putting on Northern Ireland a far greater inconvenience than we put on traders from other countries, and, in this sense, the UK is treating the people of Northern Ireland far worse than those from other countries.

To understand why this is so, and the implications of this from the perspective of international law, we need to understand the difference between international and intranational trade. With talk about globalisation, it is easy to get carried away into thinking that the world is defined by homogenous global economic flows, in which national borders are nothing more than an anachronism. But that is not the case: the borders, even between highly interdependent western countries, mark important lines of difference. For example, a lorry engaged in international trade will typically be a large vehicle and carry just one or two products. The cost of generating the paperwork associated with this, in terms of customs and SPS, will be tiny expressed as a percentage of the value of the cargo. By contrast, lorries engaged in trade within an economy often carry many different products, up to around 300. This is no problem because, within an economy, lorries can move freely. If, however, you introduce a border within an economy and require lorries travelling from one part to another to cross a customs border so that they must provide 300 separate customs declarations and 300 separate SPS declarations —or even more in the case of composite goods—the cost of generating the paperwork expressed as a percentage of the total value of the cargo becomes huge. It is so great in fact that the enterprise becomes either uneconomic or just not worth the bother. In this context, 200 companies in Great Britain have already ceased to provide goods to Northern Ireland, and if the protocol were to be implemented—let us not forget that it has never been anything like fully implemented—that number would increase dramatically, and we would be confronting a major socioeconomic crisis.

Some—such as the noble Lord, Lord Kerr—might respond to this by saying, “Well, why can’t Northern Ireland get its goods from the Republic?” It can to a degree, but only to a relatively small degree. It must be understood that Northern Ireland is a fully integrated part of the UK economy. If one looks at movements between GB and Northern Ireland, and between Northern Ireland and the Republic of Ireland, 95% is between GB and Northern Ireland. Only 5% is between Northern Ireland and the Republic of Ireland, and that is the case notwithstanding the fact that Northern Ireland and the Republic of Ireland have both been part of the European single market since 1993. It is not possible to restructure an economy overnight by cutting off the source of 95% of supply without creating huge damage.

In this regard, it is worth remembering that the Good Friday agreement is a treaty and part of international law, and the section entitled “Rights, Safeguards and Equality of Opportunity” commits to

“the right to equal opportunity in all social and economic activity.”

Yet the protocol now cuts Northern Ireland off from most of its own economy, with disastrous results. This is a real problem, because Article 2(1) of the protocol states:

“The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.


In this context, notwithstanding the existence of Article 2(1), and the fact that the operation of the protocol has had the effect of diminishing the right to economic activity by cutting Northern Ireland off from most of its economy, the source of 95% of its trade, the EU has nonetheless refused to change a word of the protocol. The UK clearly has an obligation under international law to introduce the Bill before us today.

Finally, I urge noble Lords behind this group to take the opportunity to visit McBurney and McCulla before drawing any final conclusions.

[Lord Bew (CB)]

My Lords, I shall comment briefly on the important remarks by my noble and learned friend Lord Judge. I referred earlier to the fact that the opinion of international lawyers is more complex and variegated than, say, the first 10 speakers in the House this afternoon appeared to know. One of the most important figures here is Professor Alan Boyle, emeritus professor of international law at Edinburgh, who has given evidence to committees of both Houses. At one level, his analysis is close to that of my noble and learned friend, Lord Judge. As I understand it, his view is that the Government ought to apply Article 16 at this moment.

We have been talking about this for years. I can remember, three and a half years ago, sitting down with the noble Lord, Lord Caine, looking at Article 16 and having an initial conversation about it. The Government have, at various times, been close to applying Article 16. They did not know then how fashionable it would become in this House to say that it is the way out. Had they known that that was going to happen, I am sure they would have done it, but civilised opinion said, “That is a terribly British thing, you can’t do it.” Amazingly, there has been a change of attitude now.

The point that Professor Boyle made, and which was not made by my noble and learned friend Lord Judge or anybody who has spoken for Article 16 this afternoon, is based on the idea that he accepted the underlying logic that the approach of the Bill to protect the Good Friday agreement was correct. There was a problem that the obvious features of the Good Friday agreement —strand 3 in particular, on the east-west relationship—are not being respected in the way the protocol was working.

It is pretty well documented, historically, how that situation arose in negotiating terms, but my point is this. My noble and learned friend, whose skills are so admirable in this matter, is just following a route that was followed for some hours today, which is to say, “Why do the Government not implement Article 16?” I more than half understand it. I am looking at the noble Lord, Lord Caine, and I suspect that at certain times in the last few years he might have thought that might not be a bad idea either. That is not the point. At this moment, politically, we just cannot do it. We have a serious negotiation with the EU. I have said this before: you cannot walk in and suddenly say, “Oh, by the way, chaps, we are now throwing this on top of your heads”. The moment has gone.

Further, the advocacy offered in this House is weakened by the fact that, for the majority of those people who have suddenly discovered what a wonderful device it might be, it is not accompanied by what Professor Alan Boyle did, which is to say that the saving of the Good Friday agreement is critical. He defended it on the grounds that it might be a step we have to take, and he accepted that there is a conflict between the way the protocol is working and that original international agreement, which we also have a duty to uphold.

[Lord Judge (CB)]

I understand the argument, although I do not agree with it, that if you employ Article 16 in the middle of negotiations, they will be spoiled. However, if you employ this Bill in the middle of negotiations, will the negotiations not be torpedoed even more?

[Lord Bew (CB)]

My Lords, we know for a fact that that is not so, as the Irish Foreign Minister has told us—maybe I am the only person who reads the Irish Times—that this Bill will not torpedo these negotiations. I am certain the Irish Government and the EU do not like it, but we know for a fact that this Bill is not torpedoing negotiations.

[Lord Judge (CB)]

In that case, how do we know for a fact that Article 16 will torpedo them?

Northern Ireland Protocol Bill

Lord Bew Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I support my noble friend Lady Suttie in her amendments. Notwithstanding the appeal from the noble Lord, Lord Cormack, these Benches do not need to be persuaded of his arguments. We are nevertheless tasked with scrutinising and testing this legislation, and I support my noble friend’s amendments.

I want to ask the Minister just two simple questions relating to the Sewel convention, which is now recognised as a constitutional principle. Michael Ellis, speaking on behalf of the Government in Committee in the Commons, was asked about legislative consent of this Bill. He said:

“As the hon. Member for North Down will be aware, the Sewel convention applies to this Bill, as it does to all Bills of this Parliament that intersect with devolved competence. I confirm that in the absence of functioning institutions, senior officials in the Foreign Office have already made contact with the head of the Northern Ireland civil service regarding legislative consent … The Government will consult stakeholders in Northern Ireland, including Members of the Assembly, on the operation of the Bill during its passage and thereafter”.—[Official Report, Commons, 13/7/22; cols. 385-86.]


What did the officials ask of the civil servants with regard to legislative consent in the absence of there being an Assembly? This is not a practice that has ever been seen anywhere else for the operation of the Sewel Motion. Which Members of the Assembly have been consulted during the passage of this Bill, and on what? Have they been asked, with regard to the dual regulatory regime that the Bill proposes, and what have their responses been so far?

[Lord Bew (CB)]

My Lords, I rise to put a technical point. I am not sure of the answer—it is a genuine question—but it bears on the amendment. Trade is a reserved matter in Northern Ireland. When there was first sight of Theresa May’s protocol, there was great rage in Northern Ireland. People in Northern Ireland were told, “Sorry, this is a reserved matter.” Subsequently—it was the second iteration—it was very much the view of the noble Lord, Lord Frost, that that was not itself a satisfactory answer, and there is provision in the protocol negotiated by the Johnson Government. The one significant change is to make, in very specific circumstances, a role for the consent of the Northern Ireland Assembly. That is probably the major difference between the two protocols. However, if it is a reserved matter—if that was the answer that I remember being given throughout 2017 and 2018 in this House—I cannot quite see the purchase of these amendments.

If it is a reserved matter, it is a reserved matter. It is for this Parliament to deal with these trade matters. The burden of the Bill is in dealing with Articles 5 and 10 of the protocol—not those on human rights and so on—in a way which, I accept, many Members of this House do not like. None the less, it does not seem appropriate to be raising these issues now about that role for the Northern Ireland Assembly, because trade is a reserved matter held by this House.

The history of this is perfectly clear: the Government of Ireland Act 1920 has language on trade, as do the prior Acts of Union 1800. Then there were modifications to the Government of Ireland Act—benign modernisations, I would say—under the Good Friday agreement and the legislation that went through this House, which left us with trade as a reserved matter. It seems to me that this should be taken into account. There may be some possible answer to it, and the noble Lord, Lord Frost, has negotiated a possible way that one might work around it, but trade is a reserved matter at this point. We are not concerned with the human rights provisions of the protocol and so on; they are not the issue in the Bill. It is directed mainly against Articles 5 and 10, rightly or wrongly—wrongly, I am sure many colleagues on my own Benches think—but trade being a reserved matter is a problem for amendments of this sort.

[Lord Kerr of Kinlochard (CB)]

I agree that external trade is a reserved matter, but here we are talking about trade inside the United Kingdom—as well as trade inside the single market of the European Union, of course. I do not think it follows at all that one can say there is no role for the Assembly because external trade is a reserved matter.

I would love to support the amendment in the names of the two noble Baronesses. I agree with the spirit of it. It is extraordinary how, throughout this saga, things have been done to Northern Ireland without Northern Ireland being fully consulted or even informed. It is extraordinary, when you think about it, that the protocol was concluded without the involvement—I want to embarrass him now—of the noble Lord, Lord Caine, who knows far more about these issues than most of us do and has a judgment that we would all respect. That should have been brought to bear.

I hesitate to criticise the noble Lord, Lord Frost, who is busy with his emails, but, if he would like to listen, I will criticise him. It would have been good if he had found the ability to spend more time in Northern Ireland while he was negotiating. It would have been great if his master, the then Prime Minister, had been able to spend some time trying to understand the issues and seeing people on the ground, but it is an astonishing fact that Michel Barnier had more direct personal experience of Northern Ireland than the noble Lord, Lord Frost, had. That was because Barnier had spent time there doing jobs for previous presidents of the Commission.

I feel that the syndrome of imposing things on Northern Ireland, perhaps under cover of talk about reserved matters, which I disagree with, has been damaging to the United Kingdom and, of course, to Northern Ireland. I would love to support these amendments, and of course I would do so. But it would not make an illegal act less illegal if the Northern Ireland Assembly voted for it, so what are we talking about here?

I caused the Minister to look askance when I said that we are talking about a pig of a Bill. The Minister thought that was an indelicate reference. However, what we are doing here is trying to put lipstick on the pig. It will still be a pig even if this amendment is approved. If it were put to a vote, of course I would vote for it, but my general feeling is that we know what we have to do with this Bill. The noble Lord, Lord Cormack, has correctly pointed out that what we are engaged in now is a waste of time because I am confident that at the end of the day, we will do what we have to do to this Bill. I hope the end of the day comes soon.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, when the noble Lord, Lord Purvis, set out this group of amendments, he rightly said that Clause 4 is at the heart of the Bill, and the debate has really encapsulated that point.

I have a number of questions for the Minister. We will have several debates about the scope of the delegated powers proposed, but as this is the first group dealing with the reports by the DPRRC, it is worth recalling just how unprecedented these were. The DPRRC has chosen on a number of occasions to publish a report while a Bill is still in the Commons—there is nothing unusual in that—but rarely has it been so scathing, labelling the Bill

“unprecedented in its cavalier treatment of Parliament, the EU and the Government’s own international obligations”,

as the noble Lord, Lord Pannick, has said.

The committee was unable to propose tweaks to various powers in the Bill, including those in Clause 4. Instead, it recommended gutting several key clauses. As mentioned in the debate, the Government opted not to respond to the DPRRC before we moved into Committee, even though they had from July to do so. It is hard to see how the two sides can meet in the middle, so, if we proceed to Report, it is quite possible that this House will have to strip out several clauses.

The noble Earl, Lord Kinnoull, made interesting points when he talked about the previous level of scrutiny of EU law, in which this House played a very prominent part. I am sure many Members of this House served on those committees. The EU Committee scrutinised legislation, as did this House and a whole series of committees, and the House of Commons, of course. That was a far higher level of scrutiny than anything being proposed at the moment.

The noble Lord, Lord Lilley, asked an interesting question—and he was fair in saying it was a genuine question—about the alternatives to this multitude of Henry VIII powers. I will be interested to hear the Minister’s response. It seems to me that the alternative is to go through things in detail, as the old EU committee structure in this House used to do routinely. I will be interested to hear the answer to the noble Lord’s question.

We are sympathetic to this group of amendments. I do not know what the noble Lord, Lord Purvis, is going to do but we are happy to support him.

[Lord Bew (CB)]

My Lords, I am well aware of the sensitivity in this House regarding Henry VIII powers, and I respect that; it is a serious argument. However, Northern Ireland looks at these things from an angle that is not entirely the way the House of Lords looks at them. For one thing, there are what you might call Louis XIV powers all over the place in terms of European law and regulations, but there is silence about that.

The second issue, which has already been alluded to by the noble Lord, Lord Dodds, is that again and again, we have had the most dramatic demonstrations of Henry VIII powers in areas where I and other Members, a majority in your Lordships’ House, are in agreement—abortion laws and so on. We do it all the time. When we as a local assembly like it, when it is our kind of opinion, we have no problems. When we do not like what is proposed, we discover that this application of Henry VIII powers is intrinsically terrible. To be blunt, the House needs to avoid looking totally hypocritical on this point.

I feel that I have been living for a very long time with Article 16 and the potential illegality or otherwise of the Government’s legislation. When I first encountered it, in fact, it was Article 15 in Theresa May’s Bill; it was that long ago. I read and reread it until I was blue in the face. Let me say what the problem is in attempting to challenge the Government’s position. The best argument against the current position in the legislation is that Article 16 could be and should have been applied. At the moment, it is ridiculous. We are in the middle of a serious negotiation with the EU and it would break that up, so it is fatuous and politically absurd. Apart from the principle of reality, I can see why people want to argue that, but it is not going to happen now because the Government want this legislation with the EU to succeed. In the Financial Times as recently as September, the EU was defining the application of Article 16 as an outrage and so on. The situation would simply be aggravated.

The other weak point of this argument is that saying, “We want Article 16 but nothing else” is the sound of one hand clapping. None of those who have argued for it in this House since Second Reading has shown any grasp of the central difficulty of the relationship between the two treaties and their interaction. If you are going to argue, as distinguished international lawyers have done before both our Select Committees, that the Government have a case of sorts but Article 16 should be applied first, that is based on the idea that there is an interaction between the two treaties and this is the best way of acting to defend the Good Friday agreement. That is a perfectly respectable intellectual legal argument, but it just does not fit with the political moment we find ourselves in, with ongoing negotiations.

The sensitivity that people in this Chamber have about the attitudes and feelings of the EU is quite remarkable when they do not seem to feel it themselves; they feel that they are quite adult enough to get on with this negotiation anyway, regardless of the Bill. As I pointed out, the Irish Foreign Secretary said openly that they do not like the Bill but that is not a reason for not having the negotiations. Still, it is wonderful to see people stick up for other people’s rights and interests when they themselves do not seem quite so keen or worked up about the subject.

The main point is that just saying “Article 16” is simply one hand clapping. The only possible viable argument is to say—as indeed both the House of Commons and our own Select Committee have been told—that that is indeed the way you could use it to get a result. The best criticism of the Government is that you cannot really prove necessity unless you have gone down this route. It so happens that the Government are stuck in a moment of real politics, the real negotiation that is going on, so they cannot do it, but the majority of speakers in this House say, “I would like Article 16”. That is an amazing recent conversion to Article 16. A few months ago, most of us hated it and regarded even talking about it as a piece of British brutishness. Now we really love it because we prefer it to the Bill. Unless you add to that that you accept that there is a real problem with the interaction between this agreement and the Good Friday agreement, as the former Lord Chancellor said in the House of Commons, then, in the Chinese phrase, it is just one hand clapping.

[Lord Kerr of Kinlochard (CB)]

My Lords, the noble Lord, Lord Bew, raises a fascinating conundrum, but what he said about Article 16 was based on a misunderstanding of what the noble Lord, Lord Campbell, said earlier. I do not think I have met anybody in this House who believes that the right course of action, in abstract, is to use Article 16. The right course of action is to apply the treaty that we signed: that is what a lot of us believe. Clearly, there are others who take a different view. The point that the noble Lord, Lord Campbell, was making—which is clearly correct, and has been made several times by the noble Lord, Lord Pannick—was that there is Article 16. It exists. It is the designated route—the agreed route, the treaty route—to deal with a dispute about the implementation of the protocol. I am not saying that we should be using Article 16. I am saying that we should not be using another means and pretending that it is legal so to do while Article 16 exists. That seems to be the rub of it.

I will try to deal in an amateur way with the interesting questions from the noble Lord, Lord Lilley. I do not know the answer either, but one answer would be the Irish answer: “I wouldn’t be starting from here.” I am sure that the noble Lord agrees with me that if you read Clause 18(1) or Clause 22(1) and (2) of the Bill, the only question in your mind is: is this Lewis Carroll or is it Stalin? These are astonishing powers taken for the Minister, by regulation, to do whatever he likes, providing it is broadly to do with Northern Ireland. As the noble Lord, Lord Pannick, said, the reports that we have seen from three committees—but particularly the Delegated Powers Committee—are devastating. I cannot remember seeing in this House such strong language used in a unanimously agreed cross-party report.

The noble Lord, Lord Lilley, would agree with me that we do not want to be in this situation. There must be another solution. As a former negotiator, I would say that it is crucial to avoid putting the ball in your own net. Frankly, attempting this legislation while also attempting—or claiming to be attempting—to conduct negotiations, is absurd. Here I part company with my friend the noble Lord, Lord Frost, whose third argument today was exploded by the noble Lord, Lord Purvis. He said that it is necessary for negotiating reasons to advance this protocol; this is what will make the other side sit up and pay attention. You cannot argue both necessity and that. In my view, you would be mad to argue that, because on the other side of the table it is not a playground spat. On the other side of the table is a grown-up group of 27 countries that believe in the rule of law and are concerned that bad precedents should not be set. They cannot possibly concede that, because there is a blunderbuss on the table, they must give you what you are asking for in negotiations. They are not going to do that. Therefore, my answer to the conundrum of the noble Lord, Lord Lilley, is that it is a great mistake to legislate in these terms while you are negotiating. If Ministers are telling the truth about their wish to negotiate a solution to this, the last thing they should be doing is putting forward this Bill.

--- Later in debate ---

[Lord Campbell of Pittenweem (LD)]

My Lords, I will not rehearse what I said previously about Article 16, but I will see if I can answer the question posed by the noble Lord, Lord Lilley. If you are faced with two instruments that appear to be in conflict—which I think is what we are arguing—the first thing you do is have a detailed analysis of these instruments to see whether there is a provision in them that will enable you to reconcile the difference. The advantage of Article 16 has just been set out by the noble Lord, Lord Kerr. You are adhering to the treaty by using a term within the treaty that helps you avoid being in conflict with the other treaty. That is a possible way of doing it.

[Lord Bew (CB)]

If I may intervene briefly, I have tried to explain that I had an intense relationship with Article 16 when it was deeply unfashionable in this House. Many times in the last year, I have wanted to argue privately with the Government that it should be applied. The arguments made for it are impeccable and have been for years; that is simply the case. The problem is that this is not conceivably a rational moment. There are complaints about the Bill. Does it matter what the Irish Foreign Minister says? It is said that it does not matter; we are choosing to disregard it. This is a moment when we are negotiating seriously with the EU. Suddenly to come in and say, “By the way”—and the logic is, in general terms, superb—“we are applying Article 16 now”, is bound to be destructive of the negotiations that are proceeding. We must respect the reality of the moment.

[Lord Campbell of Pittenweem (LD)]

But if the consequence of doing so is to embrace a Bill which drives a horse and cart through the procedures and principles by which this Parliament operates, surely that is an inhibition and we should avoid it at all costs.

Northern Ireland Protocol Bill

Lord Bew Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Deben (Con)]

My Lords, the noble Baroness, Lady Ritchie, has done the Committee a great favour by detailing this particular aspect of the Bill. She has shown that the powers which the Government are seeking to take cover so much that none of us has any idea whatever as to what it may mean. No doubt, the Minister will be able to write a letter which details the answers to each of her excellent questions, but behind those questions is the fundamental falsehood of this Bill. The Bill gives to Ministers powers the strength, width and depth of which none of us have any idea, and the Government have even less idea, clearly, because if they did, they would have restricted those powers and would not have asked this House to accept a proposition which is manifestly undemocratic and which could not be accepted by any democratic House in any country in western Europe.

By the noble Baroness’s detailed forensic explanation of her particular interest, she has revealed the basic falsehood in the Bill and the reason that many of us are not going to allow it to pass, because it is contrary to everything that we have ever done in our political lives. I have been in politics in one House or another for more than 40 years, and no one has ever suggested a Bill of this kind ever before. Ministers had better understand just how serious this is.

I want to say one thing about Ministers too. Having been a Minister for 16 years, which is longer than most people are in post, I learned how important it was to have parliamentary restrictions—how important it was that civil servants could say to you, “I’m afraid, Minister, you can’t do that because that requires Parliament’s acceptance.” It was a vital part of the democratic process. We are being asked to remove that from Ministers, and I say to my noble friends that it is very bad for them, as Ministers, because it is that restriction and control which ensure that they do not move beyond where they ought to go merely because it is convenient.

The last thing that I will say about the excellent offering of the noble Baroness, Lady Ritchie, is this. However detailed the answer is, it will not overcome the fact that any promise made in this House can be taken apart if we give the Government these powers. It is not for Ministers to promise us things, because, if the Act gives them powers, however fine they may be—and what a fine list of Ministers we have—their successors will be able to use these provisions in a way which undermines any promise made to the noble Baroness, Lady Ritchie. That is why I wanted to come in particularly to congratulate her, because she has revealed the fundamental falseness of this whole proposition and the reason why this Bill, of all Bills, should not be passed by this House.

[Lord Bew (CB)]

My Lords, I rise to comment on the nature of the Bill, which has now taken on gargantuan proportions. It is a raging beast running through our constitutional rights and liberties.

However, to be clear cut, it is a good deal more modest. It says that there will be no hard border. It guarantees that it will protect the European single market. Just before the dinner break, the noble Lord, Lord Purvis, pointed out that, even if the Bill were implemented, it would not restore Northern Ireland completely to the UK single market in some pure form. He was quite right but it rather misses the point that this Bill is significantly more modest.

As for human rights, a very serious topic—the record of the noble Baroness, Lady Ritchie, in this respect is unequalled—the fact of the matter is that the Bill’s focus is the trade aspects of Articles 5 to 10. It is an attempt to remodel them so that it could reasonably be argued that the commitment in the protocol that the UK single market will be protected is lived up to rather better than it currently is. This seems entirely reasonable to me. I understand that there is a new doctrine in the House: if we read a document, we are all struck dumb by what was in the protocol and cannot even think. All further thought and debate about it is now over, as some mental trauma afflicts us all and we are so lost in admiration for it, but it is a problem. One of the many problems is this: there is a commitment to protecting the UK single market but we have many examples of how it is not protected.

However, the Bill is more limited than many would guess from listening to our discourse today. The crucial point with respect to this amendment is that Article 2 is not the target. That article and its points on human rights remain untouched by this Bill. It is Articles 5 to 10, which deal with the way trade is to be conducted, that are the target of the Bill. The Bill is therefore much more limited, and possibly less of a threat to our constitutional traditions, than has been said.

Above all else, there is a very simple thing that nobody seems to accept is critical: rather than saying, “We’re terribly sorry about the democratic deficit and so on,” how do you respond to the communities in Northern Ireland, who have a right under Article 1 of the international Good Friday agreement to have their aspirations protected by the sovereign Government and are saying, “We have a major problem here: the major issue of our alienation”? That seems to have disappeared entirely. For all its problems, at least the Bill is an effort to do this.

I am not convinced that the constitutionality of the United Kingdom and its great provisions are incredibly protected or defended by saying, “We just could not care less about that question.” This is about a more complicated balance. Is it not obvious that there is a balance to be found here? I desperately hope that it is reached in the negotiations with the EU. Is it not obvious that these strong, dramatic statements on both sides are not helpful in the struggle to reach the balance that must be found?

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The third and final point I want to make in support of the comments of the noble Lord, Lord Deben, is that two committees of our House have now highlighted the unprecedented nature of this. With his experience as a Minister operating and then implementing legislation, he should be listened to. Whenever a Parliament passes something considered unprecedented, it immediately becomes precedent. Of course, we cannot bind our successors, but Ministers will be able to say as soon as this is done that this precedent is not tightened; of course it is not tightened. This is why we have gone from Henry VIII to Donald Rumsfeld. The breadth becomes wider and wider and, unless we say no, the ability to prevent that precedent becomes even harder; that is why these amendments are so important.

[Lord Bew (CB)]

My Lords, I will comment again briefly. I have said on the Floor of this House during these debates that I did not consider it necessary to reopen the mandate. If the EU can genuinely commit itself, as it is committed in the protocol, to defending the Good Friday agreement in all its parts, although it has not really understood what that means, my personal view is that that would be enough. I can understand why the Government feel the EU should reopen the mandate, but it is not a problem for me. I accept the point and I believe there could be successful talks without the reopening of the mandate; that is, providing that the EU accepts what it said itself that this is about protecting the Good Friday agreement in all its parts. As long as that part of the commitment, which has already been made, is upheld, I think there is a good prospect for these talks.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by thanking my noble friend Lady Ritchie for tabling this group of amendments. It has provoked an extremely interesting debate, with some strongly held views. First, in welcoming these amendments, my noble friend built on the contribution of my noble friend Lady Kennedy of The Shaws, who spoke last week about the importance of preserving the rights of people from all communities. The withdrawal agreement was not about the practicalities of trade; first and foremost, it was about setting out matters relating to the rights of citizens. Article 2 of the protocol reflects this, with the Government having committed to

“no diminution of rights, safeguards or equality of opportunity”

under the 1998 agreement.

The concerns raised by my noble friend Lady Ritchie are legitimate and need a detailed answer from the Minister. The Government’s obsession in relation to the European court is not helpful when it comes to questions about the rights of individuals. As my noble friend said, this is indeed an opportunity for the Government to show that they are protecting Article 2 at all costs.

The noble Lord, Lord Deben, asked a couple of very important questions. I think I wrote down correctly that he said that the Government do not even know the extent of the powers they are asking for in this Bill. That is quite a statement to make. He also gave a very telling comment about the importance of parliamentary restrictions when one has the responsibilities of a Minister. I thank him for making those points.

The noble Lord, Lord Bew, had a different view. He said that the Bill is less important than the noble Lord, Lord Deben, seemed to imply and that really the focus was on Articles 5 to 10; they are really the target of the Bill, not Article 2. I would be interested to see how the Minister reconciles those two points of view.

The noble Baroness, Lady Ludford, spoke of the law of unintended consequences. She went into some detail—almost the same level of detail as the noble Baroness, Lady Ritchie—with a number of questions that I hope the Minister will be able to answer, maybe in writing at a later stage.

The noble Lord, Lord Purvis, asked some interesting questions and reminded us all that two committees have highlighted the unprecedented nature of the Bill. This is an opportunity for the Minister to reassure us that the Article 2 rights can indeed be dynamically maintained through the Bill.

Northern Ireland Protocol Bill

Lord Bew Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Bew (CB)]

My Lords, the noble Lord, Lord Purvis, has again referred to the issues raised in the eloquent letter read out by the noble Lord, Lord Browne. First, I want to say something directly to his constituent on behalf of the House. This is what the House of Lords does. We have a big thing about Henry VIII powers and would do this with any Bill. I fully expected that and nothing I have heard has been the remotest surprise in several days of debate on the Bill. There has been not even the slightest tincture of originality. However, the problem is that the Bill, unlike the other Bills the House deals with, is not quite being dealt with in the normal way. This is part of a three-dimensional strategy of the Government. The other dimension is negotiations with the European Union. When I said weeks ago in this Chamber that these negotiations would proceed and would clearly not be badly affected by the existence of the Bill, I was greeted with howls of disapproval. In fact, we all know that they are proceeding and they have not been affected by the Bill. That is one dimension and the reality.

The other point is that this is related to a strategy that may very well fail to get the institutions of the Good Friday agreement up and running before the 25th anniversary of that agreement. This strategy may well fail, but anybody who thinks that the immediate dropping of the Bill now would help with the return of the Good Friday agreement and that strategy is also wrong. The UK Government are acting under the international agreement—Article 1(5)—which permits the Government with sovereign power to address the alienation of one or other community, as we did over the Irish language a few weeks ago and as we are now trying to do with this issue, because there is significant alienation in the unionist community over the cause of the protocol.

I simply want to make the point that, although I have been slightly cold in response to the noble Lord’s constituent’s resentment, I understand it—but this is what the House of Lords does. It will do its thing about regulatory powers, delegated powers and so on, and it ought to do that thing. What we and the noble Lord’s constituent are entitled to ask is that it should take some account of the fact that we are involved in a three-part process. The Bill is not quite just a thing in this way. It coexists with other key elements: the negotiation with the European Union, which the House now accepts, somewhat grimly, is going on unaffected by the Bill and is by far the best outcome; and the need to act under our international obligations to address the alienation of one community. I simply suggest that it would be less irritating to the noble Lord’s constituent if those points were at least acknowledged.

[Lord Hannay of Chiswick (CB)]

My Lords, I will briefly follow the noble Lord, Lord Bew, because he raised a point of great importance: we are breaking our teeth on a problem with three parts. At the moment, the Government are giving us absolutely nothing in terms of reporting on what is going on in Brussels. It is simply described as a “running commentary”, as if that were answer to the problem—well, it is not.

I lived through the last time the United Kingdom negotiated with the European Union as a third country, known as our accession negotiations. The process of the negotiations was reported on regularly to both Houses of Parliament by the Heath Government. No one said that was a running commentary or the wrong thing to do. We cannot go on like this, without the slightest idea of what is going on in Brussels, because it very much affects what we are discussing here. As the noble Lord, Lord Bew, rightly said, there is not the slightest sign to show whether our discussion here, and the Government pushing this absurd legislation through in an untimely manner, are either helping or hindering what is going on in Brussels.

I plead with the Minister to programme a moment at which the Government will give both Houses a progress report—not of everything going on in Brussels, but so that we have some idea of how that piece fits in with the others.

--- Later in debate ---

[Lord Bew (CB)]

My Lords, I thank the noble Lord for introducing these amendments and for the focus on food and agriculture for the first time in our discussions. I understand the reasons behind the amendment, but there is a context here that has a particular sensitivity for the Government, which is that the obvious thing about the protocol is that, under the Good Friday, agreement we already have food safety and animal health bodies. Those institutions are not mentioned in this amendment, but when the Good Friday agreement was functioning it was agreed very early on that they were in play.

We have working arrangements to deal with major animal health problems and so on, and the protocol implies a totally different set of arrangements from those that any casual reader of the Good Friday agreement would say we have made no use of. We already had north/south bodies in place to handle difficulties of animal health, food safety and so on, which will now be reappearing in Brussels.

The difficulty for the Government is that they are well aware that they have to find some way to redress that, and the noble Lord, Lord Purvis, has therefore raised a serious area of concern that requires widespread consultation. However, we will not get any real progress here without returning to the Good Friday agreement and without getting to the idea that Europe extracts powers to deal with veterinary health and food matters and lays down the law.

We already have in place north/south bodies where these things are dealt with extremely well—and have been for a long time. There is a reason why there is a problem here for the Government but, of course, the noble Lord, Lord Purvis, is quite right to raise this general issue of consultation. It is very pertinent, and I am indebted to him that, for the first time in these many days of debate, we are talking about food safety, animal health and what needs to be done. If we act under the principles of the Good Friday agreement, something that is currently very controversial—such as the veterinary clauses of the protocol—could be put into a calmer place acceptable to both communities.

Northern Ireland Protocol Bill

Lord Bew Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

The amendment gives Ministers the flexibility to come up with a British veterinary agreement that they and this Parliament can live with. It is a pragmatic approach, seeking not to bind Ministers’ hands but to empower them to put the Northern Ireland relationship right. I hope the Minister can respond positively to that intention. I beg to move.

[Lord Bew (CB)]

My Lords, I thank the noble Baroness, Lady Doocey, for introducing the amendment; much that she said is extremely pertinent.

It is useful at this point to remind the Committee of quite why we are in this predicament over veterinary matters. From one point of view, you can acknowledge it as a simple function of our departure from the European Union. However, the protocol, in both the May and Johnson versions, contains a way of handling veterinary matters, which is essentially to say, “We will not accept UK veterinary testing. Pirbright is gone and you are out of the system. The only form of veterinary testing we will be able to accept is that within the European Union itself”—presumably, in the case of Ireland, in Dublin. In the EU documents of the time, there are rather interesting green pictures with little arrows showing power departing from the island of Ireland to the EU, which has now taken control of this area.

There is an obvious basic problem with that. The Good Friday agreement, whose importance has been increasingly acknowledged and accepted, was not accepted as the prior agreement when we began this debate, but I notice with pleasure that it is increasingly accepted as the key agreement; that has some significance, as it was not when we opened these discussions. The Good Friday agreement established food safety and animal health boards. For the life of me, I have never known why, in the negotiation, it was quite so necessary to have the approach of extraction of powers from the island of Ireland to the EU that the protocol, lodged by the May Government and signed by the Johnson Government, contains.

That is another example of why what the Good Friday agreement suggests, and obvious pathways that follow from everything that the noble Baroness, Lady Doocey, said, should be followed, rather than a strict obsessive acceptance of the fact that, “We signed it in this protocol and therefore it can’t be changed”. A negotiation is going on and it is bound to touch on these matters. In this case, as in so many others—including, I dare say, the issue we have been discussing for the last half hour—the canopy for the settlement is acceptance of the Good Friday agreement and the way in which it approached this problem. Then you get into the possibility of consensus and agreement.

It is not all the UK Government’s fault that they find themselves, to put it mildly, on the back foot. It is arguable that they have not behaved particularly effectively in sorting this problem out, but it is not all their fault. The root of the matter is the failure of the EU to understand—and how could it?—the north-south dimension of the Good Friday agreement. That failure is radically revealed in Michel Barnier’s memoir in these documents. The explanation has been given in various books and articles by the officials involved on the Irish side in Dublin in the negotiation on the 2017 agreement, which then set the template for the two later agreements. The explanation is that the Irish Government appropriated a particular version of the Good Friday agreement—their version—and sold it to the EU, and it was accepted in Europe and by us. We cannot revisit any of these issues in any simple sense but it remains an intellectual reality that is the clue to understanding how we can redress these processes.

All these problems that seem so insoluble—I absolutely respect the spirit in which the noble Baroness, Lady Doocey, moved the amendment—are much more easily resolved if we follow what the noble Lord, Lord Murphy, said, accept the prior importance of the Good Friday agreement and realise that the institutions and the concepts to be found there are the institutions and concepts that provide the basis for a benign compromise that both the UK and the EU can live with.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the noble Baroness, Lady Doocey, for her amendment because it goes to the heart of the protocol and the protocol Bill issues in relation to the need for an SPS veterinary agreement. The dairy and farming industries on the island of Ireland require an SPS agreement. I have written to the noble Lord, Lord Caine, today, following last week’s debate on this issue following further discussions with elements of the dairy industry. The bottom line is that unless there is an SPS agreement, that could very much interfere with our dairy industry and totally undermine it.

I shall give a short explanation from the letter. Those in the dairy industry acknowledge the issues that the Northern Ireland retail sector is dealing with regarding the protocol and support for a dual regulatory regime, but such a regime would not work for the dairy industry because we are looking at the very survival of Northern Ireland dairy farmers. Approximately 30% of all Northern Ireland milk is processed in the Republic of Ireland because there is not the capacity to do so in Northern Ireland. It may be worth visiting some of the processing factories in Northern Ireland that are part of a greater co-operative group to see what they do and what they are trying to tell us.

If you create a hard border for milk, which the dual regulatory scheme outlined in the Bill will, there will be enormous environmental issues. Northern Ireland does not have the capacity to dump 30% of its milk, and milk has special regulations for its disposal. You could then move to the culling of perfectly healthy animals which, in a cost of living crisis, is inconceivable. Finally, this would lead to devastating consequences for the economy of Northern Ireland, as the agri-food industry is its bedrock.

So I say to the Minister that those in the dairy industry have looked at the impact of a 30% reduction in sales to an average Northern Ireland farmer. When you consider their average interest on loans and their loan repayments, this would result in an annual negative cash flow. In other words, their costs would be greater than their income.

In summation, it is vitally important that the negotiations achieve an SPS veterinary agreement. From what I have read in the non-papers from the EU of October last year, it is very prepared to enter into such an agreement as part of the negotiations. However, the dual regulatory regime will not work for the agri-food sector. Maybe a bespoke arrangement is required for the retail sector where some of the problems lie.

--- Later in debate ---

I am sad to say that there will be no power sharing in Northern Ireland unless the rights of unionists are respected the same as those of nationalists. There will either be no power sharing, or those rights will be respected. The first step is to restore Northern Ireland to its integral place within the United Kingdom. That requires the restoration of the Acts of Union. There is no compromise on that fundamental issue. I genuinely cannot understand how anyone in this United Kingdom House of Lords cannot see that this amendment should be supported. The Minister may not be able to give an immediate answer when he is responding but I hope he will take this back and look at it, and that we will be able to move on this on Report. I beg to move.

[Lord Bew (CB)]

My Lords, I thank the noble Baroness, Lady Hoey, for this amendment. She knows from many discussions and from what I have said in this House that, despite the distinguished legal heft behind her argument on the Acts of Union, I do not accept it. By the way, I do not accept the argument that the protocol subjugates the Acts of Union, but I do not want to repeat things that I and others have said during this debate.

However, the noble Baroness’s speech is very important for a particular reason. I look over at the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Hoey, and remember that we were all in exactly the same place in April 1998—in favour of the agreement. All of us were determined to get that agreement going. The speech from the noble Baroness, Lady Hoey, reflected a significant degree of disillusionment, largely provoked by events since the protocol.

The issue that the noble Baroness homed in on was the Acts of Union. The White Paper which preceded the Bill does not reference the issues around the Acts of Union, whereas the Bill does. It is more briefly than the noble Baroness would like, but it none the less references upholding the Acts of Union. That reflects the deterioration that has occurred in public opinion in Northern Ireland, even since the publication of the White Paper. The Government decided—I understand for tactical reasons—to include a reference to the Acts of Union in the Bill.

We have listened tonight to quite a lot of esteemed legal opinion, but the truth is that this is a political problem. It has to be faced up to. The truth is that we are in a very difficult moment when it comes to the possibility of making the Good Friday agreement’s institutions operate as we head toward its 25th anniversary. The strong conviction that I have—I think the noble Lord, Lord Murphy, also feels this—is that there is no other show in town, and so that is what we should be working to do.

One of the reasons why I am a little uncomfortable about the eloquent discourses on Henry VIII powers—I have been in this House long enough to have heard many such—is the point forcefully made by the noble Lord, Lord Dodds, tonight. The House gets very excited about Henry VIII powers when it suspects that the uses will not be loved by the House but, when it is a Henry VIII power which is pretty unpopular with large sections of opinion in Northern Ireland, the House has no qualms. We have seen it most recently on the abortion issue. What matters is not Henry VIII powers but the purposes to which they are put, and in this case the purposes to which these powers would be put would be essentially dealing not with a sea of anonymity but with EU interventions of one sort or another in the laws of the United Kingdom.

The way in which the House approaches this really makes me uncomfortable, because it is an attitude of mind that does not reflect the political nature of the problem. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, as a very esteemed legal mind in this House, actually faced up to what the Good Friday agreement, an international agreement, says quite clearly at Article 1(5). He used the expression: “You cannot live with long-term alienation.” The British Government—the sovereign Government—have a responsibility to address the long-term alienation of a community, as they did only recently on the Irish language. There is no question about that. “Alienation” is a perfectly fair translation, but that piece of legislation actually says that the British Government as the sovereign Government have to deal on the basis of equality of esteem with the long-term aspirations of both communities. There is no question but that the protocol as it now stands is seen by the unionist community as a whole as flouting its long-term aspirations.

I suppose that just after Brexit came into our lives—unhappily, for many—former Taoiseach Bertie Ahern, who was present in 1998, came to this House and addressed the House of Lords Select Committee. He said, “You can talk all you like about Europe but there is the little matter of the Good Friday agreement, held as an international agreement in the United Nations.” The House has tended to forget that. Therefore, while I am sympathetic to the fundamental legal thrusts at the beginning of the amendment in the name of the noble Baroness, Lady Hoey, the fact that many people in Northern Ireland will see her case as, if anything, too soft and too moderate is a sign of how we are losing control of public opinion in Northern Ireland and our ability to intervene in that public opinion. That is extremely worrying.

The noble Lord, Lord Empey, who was in his place earlier this evening, is quite right: we cannot afford to give the impression that Northern Ireland is an ungovernable entity. There must be a return to power sharing. I will be clear about this: it will not occur on any other basis than a renewed form of historic compromise. We should take the amendment in the name of the noble Baroness, Lady Hoey, as a warning about how public mood is evolving away from compromise, and all the lectures on Henry VIII powers in the world are not anything like as significant as that fact for the political history of this country.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I have three amendments in this group but, before referring to them, I say that obviously this set of amendments really deals with the restrictions on the use of ministerial powers. In fact, the noble Lord, Lord Bew, referred to the kernel of the issue, which is about the politics of Northern Ireland. I think that is what the noble Baroness, Lady Hoey, also said. Obviously, as a democratic Irish nationalist I come from a very different position, and I make no bones about it. In the fullness of time, subject to agreement and to consent, I would like to see the island of Ireland politically united, but that is united according to the principle of consent and united by agreement. The land is already united, but I mean the uniting of people on the island.

In this discourse, we must not forget that we have to move towards compromise and achieve it. I go back to the point made by my noble friend Lord Murphy: the most important thing is that there is an urgent need for the parties in Northern Ireland to be directly involved in the negotiations with the UK, the Irish Government and the EU. Unless that happens, we will go down the road of technical negotiations and discussions ad infinitum but they will not solve the political issues that exist, and those political issues urgently require to be resolved if we are to have the restoration of political institutions.

In that context, I pose this question: do all parties and all peoples want those political institutions restored? For my part, I would like them restored because they are based on the principle of consent and it is all about power sharing and co-operation. Because of the nature of the divided society in Northern Ireland, it cannot go any other way and the only solution is via the Good Friday agreement. I hope we will get back to that, and the best way to do it is through negotiations between not only the UK and the EU but the parties in Northern Ireland that are most directly affected, representing all the people, and of course the Irish Government, who could take on the role of the EU or work in partnership with the EU as a member state.

Amendment 46 seeks to circumscribe and limit the regulations to ensure adherence to Northern Ireland Assembly approval for a legislative consent Motion. The regulations are referred to only in the Bill; they are not specified and will be subject to secondary legislation. The noble Lord, Lord Bew, referred to Henry VIII powers. If this were just about Henry VIII powers then it might be quite simple, but it comes back to the overarching umbrella of the political situation and the need for a political solution. Here, there is a total disregard for the democratic consent of the Assembly and the importance of what it is there to do as an organ of the Good Friday agreement. It is important that that is built into this legislation, although obviously I would prefer that the legislation was not there and that it was replaced totally by negotiations.

Amendment 54 seeks the agreement of the First and Deputy First Ministers acting jointly on behalf of the Executive or Assembly. In that, I am building in joint accountability. There is a case for reverting to the appointment of the Ministers jointly as joint First Ministers. In fact the noble Lord, Lord Empey, referred to the earlier situation where, at St Andrews, that principle was undermined. Appointing Ministers and calling them joint First Ministers would emphasise power sharing, co-operation and jointery. It would recognise the principle of consent as prescribed by the Good Friday agreement, and it would get away from the idea of one side saying, “Make me First Minister”, and the other side saying, “No, make me First Minister”. We have to ensure that equality and parity of esteem are recognised in the Bill if the Bill is to go ahead.

Amendment 55 proposes a new clause requiring the Minister yet again to obtain the consent of the Northern Ireland Assembly to exercise the power to make regulations conferred by the Bill. It would also require a Minister to obtain the consent of the Assembly for the continued application of the regulations beyond the relevant period. It would therefore require the consent and the accountability of the Assembly. There should be no imposition of these unspecified regulations without the agreement of the Assembly. The fundamental point is that the people of Northern Ireland and their elected representatives in the Assembly are key and fundamental to the whole process, and should be directly involved in the negotiations in deciding the way forward.